Fidelis Diagnostics, Inc. v. SafeGuard Services, L.L.C. et al

Filing 59

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE for 40 Motion to Dismiss/Lack of Jurisdiction, filed by Palmetto GBA, LLC, Kathleen Sebelius, SafeGuard Services, L.L.C., Donald Berwick, M.D., 57 Report and Recommendations. Signed by Judge Michael H. Schneider on 11/29/11. (cm, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERM AN DIVISION

FIDELIS DIAGNOSTICS, INC.

v.

SAFEGUARD SERVICES, L.L.C.,
KATHLEEN SEBELIUS, PALMETTO GBA,
and DONALD BERWICK, M.D.

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Case No. 4:10-CV-638
Judge Schneider/Judge Mazzant

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On November 4, 2011, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendants’ Motion to Dismiss Plaintiff’s Second
Amended Complaint for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1) and for Failure
to State a Claim Under Rule 12(b)(6) (Dkt. #40) be granted in part and denied in part.
Having received the report of the United States Magistrate Judge, and no objections thereto
having been timely filed, this Court is of the opinion that the findings and conclusions of the
Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and conclusions
of the Court.
It is, therefore, ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Second Amended
Complaint for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1) and for Failure to State a
Claim Under Rule 12(b)(6) (Dkt. #40) is GRANTED in part and DENIED in part.

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.
Plaintiff’s claims for violating the Medicare Act, violating the Administrative Procedure Act,
violating Plaintiff’s due process rights, declaratory judgment, and mandamus are DISMISSED
without prejudice. Plaintiff may refile its claims, if it chooses to do so, following exhaustion of its
administrative remedies under the Medicare Act.
It is SO ORDERED.

SIGNED this 29th day of November, 2011.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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